This is a discussion that has bothered me for a long time. There are debates and studies which try to suggest that one or another of "first to file" (FTF) or "first to invent" (FTI) is better for one or another type of inventor (small inventors, etc).

A recent article in IP Osgoode demonstrates the problem. In referencing a study the article suggests, "The study finds that the shift to FTF resulted in a reduction in the number of patents granted to individual Canadian inventors and small businesses". This is a study based on the Canadian experience having made the switch to FTF in 1989, with the USA switch coming into force in 2013.

The assumption of the article, and most of the debaters, is that if some patents are good, more are better. The fact that the number of patents granted went down after a change should not be presumed to be a bad thing, when in fact patents not being granted may just as easily be a good thing for innovation.

I received the following note about a contest from Patexia to find prior art on a specific patent. Given the critical problem of patent quality, where innovations that are low in utility, novelty and/or unobviousness are granted a patent statutory monopoly by governments, tools to invalidate poor quality patents are an important part of the solution.

Two forms of government manipulation of the marketplace have become the most controversial aspects of the Trans-Pacific Partnership (TPP) for Canadians: supply management and statutory knowledge monopolies. Each are government interventions in the marketplace between producers and consumers, each have a stated public policy purpose, and each are controversial.

While it would be better if patent offices did proper examinations and rejected all but the inventions most deserving of this intrusive government granted monopoly, it is great that public interest groups like the Public Patent Foundation ("PUBPAT") exist.

New York, NY -- August 26, 2010 -- The Public Patent Foundation (PUBPAT) announced today that it has formally asked the United States Patent and Trademark Office to reexamine eight patents held by Abbott Laboratories (NYSE: ABT) relating to the critical HIV/AIDS drug ritonavir, which is marketed by the Chicago, Illinois pharmaceutical giant under the name brand Norvir.

The article also touches upon patent law and paraphrases Michel Gerin of the Intellectual Property Institute of Canada, as saying we need to "promote awareness and clear up confusion among small and medium-sized businesses about the importance of intellectual property, especially around trademarks and patents. He said that without such protection, it is becoming increasingly difficult for companies to attract investors."

There seems to be more and more recognition of the idea that more and more patents aren't necessarily a good thing. This blog post points to a paper (PDF) that tries to quantify the costs of bad patents.

An article by Martin LaMonica, Staff Writer for CNET News.com documents an Eco-Patent Commons launched by IBM. Is this IBM trying to green their image and the declining image of the patent system itself? Is this like their contributions of patents to FLOSS projects has done for their image in the FLOSS community? We still need to ask why various IBM lawyers promote patentability in subject matter areas where we would be better off having no patents at all, such as information/mental processes.

Canadians should remember that in Canada it was IBM's patent lawyers, not Microsoft, that has been leading the charge to increase patentability to include things such as information/mental processes (software, business methods, etc).

A PUBPAT press release for July 24, 2007 talks about a recent USPTO rejection of Monsanto patent claims. PUBPAT has been doing a great job in helping ensure the courts, policy makers, and the general public understand that there is a public benefit to the rejection of patents and the reduction of patentability.